As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Living in a constitutional democracy can be unsettling and complicated – especially if one has not embraced the values underlying a functioning constitutional democracy. In such a democracy all role players must accept that there are competing views of what constitutes the public good. They also have to accept that it is legitimate for members of different political parties to advance alternative versions of what would constitute the public good or how to achieve it.
Even if one passionately believes that one’s own version of the public good (or the version of the public good espoused by the political party of ones choice) is the correct one, one has to embrace the idea that other, competing and even radically different visions, are legitimate – even if one believes that these alternative versions are dangerously misguided and immoral or that pursuing such alternative versions would be detrimental to the wellbeing of the majority of the citizens (or the majority of citizens who voted for the party of ones choice).
One must also accept that the political party of one’s choice has to compete for votes in free and fair elections and that the party who wins the majority of votes at an election (even if it is the party that one belongs to, supports steadfastly and may have been one of the parties involved in the struggle for a just South Africa), has no divine right to rule and holds power only temporarily and at the mercy of voters.
One must accept (even if one is its leader and the President of the country) that the current ruling party’s continued rule is subject to the continued support of the majority of voters who at any future free and fair election can reject the vision put forward by that party and vote into government another party or parties to rule the country.
What flows from this is the need to accept that there is a fundamental difference between the ruling party and its interests, the government and its interests, and the state. If the ruling party is voted out of office the state will continue functioning; ID books and passports will continue to be issued, social grants will continue to be paid, judges will continue to interpret and enforce the law and the constitution – even if the party of one’s choice is rejected at the ballot box and a new party or parties (temporarily) take over the government.
In a constitutional democracy the health and wellbeing of the ruling party is not to be equated with the wellbeing of the citizens. Taxpayers can therefore not be required to pay for party political activities – except to the extent that all political parties in the legislature are funded in a fair and equitable manner. The party in government cannot utilize government resources to fund its activities. If it did, it would be abusing its powers to gain an unfair electoral advantage and this will make free and fair elections impossible.
Where the party in government abuses public resources to advance its own party political interests it therefore acts in an anti-democratic manner and undermines the basic values underlying the South African Constitution. When the governing party abuses state resources to keep itself in power, it signals the death of democracy.
Where one political party dominates the political landscape (in, what is called a dominant party democracy) and continues in office for a considerable period the distinction between the majority party, the government and the state tends to get blurred. Members of such a governing party have a tendency to begin to believe that the party, the government it leads and the state are the same thing and that the state and the government are there to further the interests of the party (because the party is the embodiment of the aspirations of the people).
Because it is wrongly assumed that such a governing party’s vision of the public good is the only legitimate vision and the only one that could possibly be morally valid (because the majority party has won successive elections with large majorities of the popular vote), members of such a majority party can begin to believe that the interests of the party, the interests of the state and the interests of the citizens of the country are all one and the same thing.
Only the majority party is then seen as being capable of advancing the interests of the majority of citizens and a belief may take hold that the majority party has a right to continue ruling the country in perpetuity. The party and the state becomes difficult to distinguish from one another because it is assumed that the party will continue in government for a very long time (or even for ever – remember Iain Smiths comment that his party would rule “Rhodesia” for a 1000 years) and that it therefore “owns” the state.
This view is deeply problematic because it negates the essence of democracy, namely that a political party does not own the state but only temporarily holds the reigns of state power, serving the people as the governing party until the next election – when it can be returned to government or can be rejected by voters while the state continues to function in its normal fashion.
It is against this background that reported remarks by President Jacob Zuma at the ANC National Executive Committee (NEC) meeting of the ruling ANC last month must be viewed as rather disturbing. President Zuma is reported to have proposed that ANC NEC members should be allowed time off to advance the interests of the ANC:
If it is necessary, for example, to release NEC members in government to do organizational [thus ANC] work for two weeks every quarter, then we should agree to do so. People may be concerned that government work will suffer as a result. But it will suffer far more if there is no viable ANC to drive the process of social change.
These reported remarks illustrate, rather alarmingly, the tendency I have highlighted above. Because the ANC is (righty or wrongly) seen as the only body who can legitimately drive valid social change, the roles of members of the ANC government are equated with the roles of these members as leaders of the majority political party.
If President Zuma was reported correctly, he is clearly not a democrat in the sense that the term is usually used. The remarks suggest that Zuma fails to understand that in a constitutional democracy members of the government are elected by the voters and their salaries are paid by tax payers to do government business and that party business and government business is not the same thing.
Party business relates to activities aimed at mobilizing and promoting the political party to allow it to remain in power. Government business relates to the running of the country and implementing the policies of the governing party. Neither the party or the government “owns” the state.
The suggestion that ANC members in government must be allowed to do party political work for 8 weeks a year, assuming while they are being paid a salary by taxpayers, because the ANC is the only party that can drive social change, is therefore quite outrageous and anti-democratic. It conflates the party and the state and also assumes that the interests of the party and that of the government are the same.
President Zuma’s proposal is clearly not in line with what is allowed by the Constitution. Several provisions in the Constitution recognizes the fact that we live in a multi-party democracy in which free and fair elections forms the basis of the legitimacy of the government of the day. If President Zuma’s reported proposal is adopted it would completely subvert the multi-party nature of our democracy and would bring an end to any semblance of democracy in South Africa.
If President Zuma was reported correctly, he is not a democrat as envisaged by our constitution. In any case, his proposal would be unconstitutional. Someone should whisper in his ear and tell him this. Maybe it is time for the democrats in the ANC (of which there are many, along with the Stalinists and the kleptocratic nationalists), to stand up to our President (as they eventually did with Thabo Mbeki after he had embarked on a catastrophic and murderous questioning of the link between HIV and Aids and refused to roll out life saving ARVs to those who could not pay for it).
The ANC does not own the government or the state. Suggesting, as our President reportedly did, that it is, is just as troubling as the moves by the ruling party to muzzle the press. If he was reported correctly, every true democrat in South Africa would rightfully be outraged and a bit scared by his comments. Maybe its time for someone like Jeremy Cronin to show the same kind of backbone he showed in speaking out against the dictatorial tendencies of Thabo Mbeki.BACK TO TOP